“Company X has updated its Terms & Conditions” but it’s fine because you won’t read them anyway…

Ryan Cracknell, Cracknell Law

Everyone has been on the receiving end of a “We have updated our T&Cs” email from the likes of Google, PayPal, Twitter, eBay etc. There may be legitimate reasons for this such as a change in the law, company restructuring or changes in working practices. But should you care? Well the short answer is yes.

Why you should care

It is easy to fall into a false sense of security, particularly for trusted brands that you buy from or regularly use their services. If you are a consumer then you may feel more relaxed on the basis that there is a large body of Consumer legislation which sets out a basic standard for suppliers of goods and service providers to comply with. However, this is far from saying that the terms are in your favour, and they are generally not.

It is therefore crucial to know your rights and obligations so that you can make an informed decision when you are signing up to purchase goods online, download an app or use a service. However, this does have to be balanced against how much you want to receive the goods / app / services as there is usually no room for negotiating the terms with giant multinational companies.

For example, in a recent email from eBay we received entitled ‘Updates to your eBay agreements and privacy notice’, eBay clearly state that: “If you choose not to accept these updated terms or the assignment of your agreement to your new eBay company, then you must cancel your eBay account.” So essentially they are saying, accept our terms (and a new contracting entity) or go away.

Because of this, if you still want to receive the service, we can see why you wouldn’t bother wasting your time reviewing the terms, particularly if the changes are not clearly stated. This highlights the risk of a party having the unilateral right to change the contract – they can change key terms and the changes may be hidden in a lengthy document that they know you won’t read.

Scope for negotiation

However, the situation is slightly different in your own business agreements with suppliers and having a good understanding of the ‘reasonable’ contractual position can greatly help increase your bargaining strength. Demonstrating that certain terms are clearly unreasonable to the other party can be a very effective tool in moving the terms towards a mutually agreeable position.

We negotiate contracts for clients every day and by knowing where the key issues are likely to arise, we are able to significantly decrease our clients’ risk, and in particular, remove any right for the terms to be revised without our clients’ knowledge and consent. This ensures that there is certainty in the relationship and reduces the risk of disputes arising.

We would be delighted to help with reviewing and/or negotiating your commercial agreements so please give Cracknell Law a call today on 01603 339044 to discuss your requirements.

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